Published:  9th February 2023

Public Law Project’s client, “K”, has successfully overturned three Department of Work and Pensions’ (DWP) decisions refusing to waive £8,623.20 Universal Credit debt arising from repeated mistakes by the department.

On 7 February the High Court ruled that the DWP’s decisions to recover ‘official error’ overpayment debt from K’s benefits were unlawful and that she should not have to repay the debt.

Forcing K to pay back the overpayment would have left her without enough money to live on a month-by-month basis.

The overpayment debt arose from multiple mistakes around K’s Universal Credit allowance in 2019, despite her providing the DWP with the relevant information they needed to calculate her entitlement correctly.

K’s sons have autism and ADHD with associated complex care needs meaning she was unable to increase her working hours, as they rely on her to manage their daily activities and provide emotional and practical support.

K informed the DWP that her son had enrolled in an apprenticeship scheme and queried how this might impact her allowance. Having been told by DWP that it would not have any impact, K continued receiving the same amount of Universal Credit every month.

18 months later she was told she had been overpaid over £8,600 and faced the prospect of having to pay the money back by way of deductions from her monthly benefit allowance.

The successful judicial review challenge, in which K was represented by Public Law Project and supported by the North Bristol Advice Centre, was preceded by numerous attempts by K to have DWP waive recovery of the debt, which they refused to do.

The judicial review involved a challenge to these refusals and to the DWP’s interpretation of their Benefit overpayment recovery guide, which states that DWP has discretion to waiver overpayment recovery where appropriate.

K said:

“When I was told I owed DWP over £8,000 I was in disbelief. Paying it back even at a small amount a month would have taken me years and meant making day to day sacrifices for my family. The worst part was I knew I had done everything right and DWP were in the wrong.

“While the process of going to court has caused me a lot of stress, I finally feel I’ve been heard and I hope my case can be used by others in the future. I would urge anyone that finds themselves in my position of being ignored by the DWP to get help and advice, as I could not have done this without North Bristol Advice Centre and Public Law Project.”

Emma Vincent Miller, the solicitor representing K said:

“This is a great outcome for K who has shown great fortitude in the face of persistent unlawful refusals by DWP to do the right thing and waive this overpayment, which was caused solely by their own mistakes. I would strongly encourage other people who, like K, are facing hardship due to being erroneously overpaid benefit, to seek advice and make a waiver request to DWP Debt Management.”

What does the judgment mean for others?

This judgment could also be significant for other cases of official error overpayments.

A detailed blog by Alexander McColl from Garden Court North Chambers sets out the implications of the case for welfare rights advisors and lawyers.

In summary, it could be helpful where:

  1. A benefit claimant has given all relevant information to the DWP;
  2. Is incorrectly advised by the DWP that they are entitled to keep money they are receiving, which the claimant relies on; and
  3. Paying back that money would cause unfairness. For example, because the claimant has relied on the advice to their detriment and spent the money on day to day essentials.

In these cases, benefit claimants may be able to argue that recovering the debt would be an unlawful breach of their legitimate expectation.

Secondly, the judgment makes clear that where a benefit claimant makes a waiver request which is in part based on the cause of the overpayment being a DWP error, the DWP must properly take these circumstances into account. It also says that it is possible to argue that a recovery of a debt should be waived solely because it is not in the public interest.

Thirdly, the judge found that the DWP had not adequately considered the impact of the Benefit Overpayment Recovery Guide on people with disabilities when updating the policy and had breached the Public Sector Equality Duty. The DWP  should now take steps to comply with this duty, such as carrying out an Equality Impact Assessment.

Finally, during K’s  case the DWP made significant changes to the Benefit Overpayment Recovery Guide in February and December 2022. These changes should make it easier for benefit claimants to apply for a waiver, particularly on the grounds of official error.

K was assisted in this challenge by K’s benefits adviser Luke Albarran of North Bristol Advice Centre. Counsel were Adam Straw KC at Doughty Street and Tom Royston at Garden Court North.